This article was written by Sean Fine and was published in the Globe & Mail on October 25, 2023.
Federal act deemed unconstitutional by Supreme Court disrupts two projects: province
The Ontario government is asking a court to kill a federal environmental law once and for all after the Supreme Court of Canada concluded that the law is an overreach.
Ontario Attorney-General Doug Downey said it is unfair that a law declared unconstitutional by the Supreme Court is still standing in the way of infrastructure projects he says are desperately needed in a fast-growing province.
“We’re not going to wait and have our projects held up,” he told a news conference. “We have 500,000 people coming into this province every year. We need the infrastructure, we need the highways.”
The 2019 Impact Assessment Act (IAA) gives Ottawa wideranging powers over natural-resource and industrial projects. It allows the federal government to scrutinize projects for “effects within federal jurisdiction” – such as on Indigenous peoples, birds, fish, species at risk and climate change.
The Supreme Court ruled 5-2 that it steps into provincial jurisdiction, by allowing federal authorities to determine the public interest in an overall project, and is therefore unconstitutional. It said, though, that a federal role remains possible in environmental assessments.
But the ruling was not binding on Ottawa because it came in a reference case – a case in which Alberta asked for an advisory opinion. (Ontario and several other provinces intervened in the case to make arguments in support of Alberta’s position that it was unconstitutional.) Ottawa quickly responded to the ruling by saying it would amend the Impact Assessment Act, but that, until it could do so, it would continue using that law, within the limits set by the court.
Mr. Downey said that announcement left confusion and potential roadblocks in the way of provincial infrastructure projects.
“Despite this finding of unconstitutionality from Canada’s highest court, the Minister has publicly taken the position that the Act still applies in its entirety while the federal government drafts potential amendments,” the province said in a court filing on Tuesday.
Kaitlin Power, a spokesperson for Environment and Climate Change Minister Steven Guilbeault, said the federal government will provide regulatory certainty by announcing interim guidance on how it will administer the assessment law.
“The Impact Assessment Act was put in place to create a better set of rules for the protection of the environment and respect for Indigenous rights,” she said in an e-mail.
“Since the Act came into force, we have already seen major projects get approved on a faster timeline. It’s important to recognize that the Supreme Court explicitly upheld the right of the Government of Canada to implement impact assessment legislation and to collaborate with provinces on environmental protection.”
In two applications for judicial review filed in Federal Court, Ontario cites the potential effects of the act on two projects – the building of Highway 413, linking up Peel, York and Halton regions north of Toronto, and an underground parking garage at Ontario Place, an amusement park. If Mr. Guilbeault “designates” a project under the Act, there are no timelines for when decisions must be made on whether a project may proceed, Ontario said. And the highway was designated in May, 2021, because of federal concerns over species at risk in natural habitats.
“For over two years, Ontario has been engaged in back-andforth discussions” with federal officials, who “had numerous follow-up questions and requests for information or revisions that are not connected to the reasons why the Minister designated the project,” Ontario said in its court filing.
The province said it is waiting for a decision on whether the parking garage will be designated.
Ontario is asking the Federal Court for orders forbidding the federal government from making any decisions on either project under the assessment law, and for a ruling that the law should be treated as no longer in effect for other projects.
Stewart Elgie, a professor of law and economics and director of the Institute of the Environment at the University of Ottawa, said the reference case brought by Alberta took 32 months to complete, and this one could take 12-18 months.
“By the time Ontario gets a court decision, the federal government will probably have amended the IAA to comply with the Supreme Court’s ruling. Ontario’s action sounds like it is more about politics than law,” Prof. Elgie said.
Peter Gall, a lawyer who represented two Alberta business groups intervening at the Supreme Court, said there should be no need to apply for “what is in essence the enforcement of the court’s decision,” as governments are expected to abide by the Supreme Court’s clear statements of law, even if they arise in a reference case.
Sandy Shaw, environment critic for the Ontario New Democratic Party, said the federal government was prepared to provide the environmental protections that Ontario would not.
“This government’s record on the environment is abysmal and now they’re saying ‘just trust us.’ ” She said Highway 413 would go through some of the most sensitive Greenbelt, wetlands and farmland in the province.
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